TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1032609-1

VICE PRESIDENT LAWLER

AM2012/2

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by Chapman
(AM2012/2)
Black Coal Mining Industry Award 2010

(ODN AM2008/2)
[MA000001 Print PR985111]]




Melbourne

10.05AM, FRIDAY, 27 JANUARY 2012

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE VICE PRESIDENT: Good morning. Appearances for the record, please. Mr Rauf?

PN2

MR B. RAUF: Yes, in Sydney. Your Honour, I appear for the Coal mining Industry Employer Group today.

PN3

THE VICE PRESIDENT: Thank you, Mr Rauf.

PN4

MR A. THOMAS: Yes, your Honour. If the tribunal pleases, I appear on behalf of the CFMEU; Thomas, initial A.

PN5

THE VICE PRESIDENT: Thank you, Mr Thomas. We have no appearance of Mr Chapman it seems. Yes. Is - - -

PN6

MR THOMAS: No, not at this end.

PN7

THE VICE PRESIDENT: Okay. So my associate hasn't spoken to Mr Chapman, but she did send him a notice of listing for today, and the listing was published on the website, and she sent the notice of listing to his email address, being the email address that he has been using to communicate with the tribunal, the one specified on his application. Now, Mr Rauf and Mr Thomas, I don't wish to put your client, Mr Rauf, or the CFMEU, Mr Thomas, to unnecessary further additional time, trouble and expense in relation to this application. I note for the record that the Black Coal Mining Industry Award 2010 was, as to the vast majority of the language of it and certainly as to the coverage clause, a matter of the tribunal adopting text agreed between the industry parties.

PN8

I note that the black coal mining industry is in a very peculiar position, where every single employer was represented as part of the coal mining industry group - that is, every single employer to be covered by the proposed Black Coal Mining Industry Award - and the CFMEU has complete coverage on the union's side in the black coal mining industry, relevantly for present purpose - and I note that the AMWU also have coverage but they haven't the same interest as the CFMEU. The CFMEU has taken the lead role in the negotiations that occurred between the industry parties for the purpose of the creation for the Black Coal mining Industry Award 2010.

PN9

The application is difficult to fathom on its face in terms of its motivation or its significance. I assume that it may be possible to dispose of it today. Mr Rauf, is there anything that you'd like to say and, Mr Thomas, is there anything you'd like to say in terms of putting the position of your respective client and union on the record in relation to it so that I don't need to trouble you again unless some case that I cannot presently foresee is successfully advanced by Mr Chapman?

PN10

MR RAUF: Thank you.

PN11

THE VICE PRESIDENT: My intent would be not to trouble the parties again unless and until such a case was advanced.

PN12

MR RAUF: Yes. Thank you, your Honour. Sadly, Mr Thomas and I have had discussions about the application - and I'll let Mr Thomas speak for himself - but I think it's fair to say that the view really is that the variation sought is not necessary, in that the relevant provision really isn't ambiguous. So therefore we've crossed this award, but also other awards, and it's quite common for the order to be used in a disjunctive sense in the document but also in other awards. So there's nothing peculiar about that nor confusing, in our view, and we don't necessarily agree with the outcome or the interpretation sort of brought about or proposed by the application, but we don't think that there's any ambiguity and that's how it ought to be interpreted anyway.

PN13

But I'll let Mr Thomas speak for himself for the union.

PN14

THE VICE PRESIDENT: Thank you, Mr Thomas.

PN15

MR THOMAS: Yes. Thank you, your Honour. There are two reasons, your Honour, why the CFMEU would not support the application. The first reason is we simply believe that it's unnecessary, in that it's simply another way of expressing the current provision, namely that an employee is entitled to overtime at the double time rate if their roster meets any - and I repeat "any" - of the criterion in sub-clause 17.2(b).

PN16

THE VICE PRESIDENT: Yes. Thank you. I take it that both parties would say that it's a perfectly normal usage when one wants to set out a list of disjunctives, to set them out - - -

PN17

MR THOMAS: That's right.

PN18

THE VICE PRESIDENT: - - - separated by semicolons with a single "or" at the end of the penultimate option?

PN19

MR THOMAS: That's correct, your Honour, and indeed that's the second reason, we say, that this variation is not necessary. Nor do we say that it is desirable, in that the format in sub-clause 17.2(b) is consistent with the rules of drafting used throughout the award with respect to whether the application - more than one criterion is to apply collectively or individually, or to use a higher level of pageantry, I guess, conjunctively or disjunctively.

PN20

THE VICE PRESIDENT: Yes. By the way, I take it that neither of the parties who are represented today have had any communication with Mr Chapman?

PN21

MR THOMAS: I personally haven't, your Honour, but Mr Endicott from our Northern District has spoken with Mr Endicott (sic), and it - I don't want to speak for the applicant, of course, and I can't - but I understand that it's an issue of how his employer is applying the provision. So that's the real - - -

PN22

THE VICE PRESIDENT: I see. So on what Mr Endicott has managed to glean, it seems as if Mr Chapman's application is misconceived and that what he's really seeking is - what he really ought to be doing is raising a dispute under the dispute resolution procedure that the award is not being applied properly in his case, and he doesn't need, on the submissions of both parties here, to have the variation of the modern award that he seeks in order to be able to advance a claim that he makes in respect of the payments for overtime?

PN23

MR THOMAS: That is as we understand it and as I have gleaned in my discussions with Mr Endicott, your Honour, yes.

PN24

THE VICE PRESIDENT: Thank you, Mr Thomas. That's very helpful. Now, I think I was interrupting one or another of you.

PN25

MR THOMAS: Your Honour, what we would say is that, in our view, it's neither necessary nor is it desirable for no good reason to approve a variation whose only effect will be to upset, so to speak, the existing rules of construction that have been applied to the award, and to do so may only lead to issues of construction or interpretation further down the track.

PN26

THE VICE PRESIDENT: Yes. Mr Thomas, unless you feel the need to make further submissions, can I say provisionally fully with you both - and I don't think there's any need for you to say anything further at this point - you've articulated, I think, reasons that are compelling and sufficient. As a matter of according procedural fairness to Mr Chapman, I think I need to refrain from reaching a concluded view on the matter here today. I'll send a copy of the transcript of today's mention to Mr Chapman and indicate to him that I will receive a written submission from him in support of his application, and then determine it without further reference to either the Coal mining Industry Employer Group or the CFMEU unless I was persuaded by Mr Chapman that there was some serious argument to be advanced against what has been provisionally outlined today.

PN27

I take it that you're content with that course, Mr Thomas?

PN28

MR THOMAS: Yes, I am, your Honour.

PN29

THE VICE PRESIDENT: I take it that you're content with that course, Mr Rauf?

PN30

MR RAUF: Yes, your Honour.

PN31

THE VICE PRESIDENT: Okay. Well, is there anything further you need to put on the record, Mr Rauf?

PN32

MR RAUF: Nothing further, your Honour.

PN33

THE VICE PRESIDENT: Anything further from you, Mr Thomas?

PN34

MR THOMAS: No, your Honour.

PN35

THE VICE PRESIDENT: Fine. Well, that concludes the matter. And as I say, there'll be no need for either of the parties to participate again in this application unless Mr Chapman unexpectedly - at least from my present perspective - raises some compelling argument that needs to be addressed further. The tribunal is adjourned.

PN36

MR THOMAS: Thank you, your Honour.

<ADJOURNED INDEFINITELY [10.14AM]